Mimesis Law
27 June 2017

The Death of Justice Scalia and the Most Dangerous Branch

Feb. 15, 2016 (Mimesis Law) — The Federalist No. 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.

Alexander Hamilton, Independent Journal
Saturday, June 14, 1788

Hamilton

The passing of Justice Scalia has generated loads of publicity. There is no doubt that he was a legal giant. There is also no doubt that he was loved by many of his mates on the Court, even when he thundered at them in his writings. It is particularly worth noting in this venue that he was often a friend to the criminal defendant.

But the passing of the Justice also makes something plain. Starting with Marbury, the Supreme Court has wrangled more and more power from the democratically elected branches of our government. To an extent, this was to be expected. Moreover, it was (and is) sometimes necessary for the Court to flex the muscles that it appropriated from the People, the President, the Congress and the States. Perhaps Brown v. Board of Education is a good illustration. But then there is Citizens United too.

The People and the political branches of the government are the most culpable for this dysfunction. Instead of resolving disputes in a democratic and civil fashion, the People, the President, the Congress, and the States have knowingly and increasingly fought like bratty children and passed their disputes to the Court to resolve.

The tsunami of publicity, replete with grotesque political maneuvering mere minutes after the Justice’s passing, proves something important. The Supreme Court has become the most dangerous branch. And that is a very bad thing.

Richard G. Kopf
Senior United States District Judge (Nebraska)

6 Comments on this post.

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  • Raymond Rigat
    15 February 2016 at 10:36 am - Reply

    Hmmm… with respect to the political maneuvering– and I agree that it certainly is gotesque– remember the words of the venerable Bede: “and this too shall pass…”

    With respect to the Supreme Court being the most dangerous branch– and here, I’m not sure I agree– consider Andrew Jackson’s reaction to the perceived activism of his time: “John Marshall has rendered his decision… now let’s see him enforce it.” Of course, if memory serves correctly, John Marshall ended up toting his way in the end. Maybe you’re right. Yikes!

    • Richard Kopf
      15 February 2016 at 1:38 pm - Reply

      Raymond,

      Maybe I am right, you add. So I will add, maybe I am just old!

      All the best.

      RGK

  • Andy
    18 February 2016 at 4:28 pm - Reply

    well said

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